Opinion
NOT TO BE PUBLISHED
APPEAL from an order and judgment of the Superior Court of San Diego County,Super. Ct. No. SCN19263 Runston G. Maino, Judge.
McDONALD, J.
Defendant Augustine Equihua appeals a no-contact order imposed as a condition of his six-year prison sentence following a conviction of one count of forcible rape. (Pen. Code, § 261, subd. (a)(2).) Equihua contends the no-contact order violates his right to due process because the order was unauthorized and exceeded the jurisdiction of the trial court.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Equihua is the father of the victim, his 19-year-old daughter (Daughter). On March 27, 2005, Equihua told Daughter, to whom he had not spoken in over three years, that he wanted to talk to her but was uncomfortable talking at home with other family members present. Equihua drove Daughter to an isolated area, telling her that he was taking her to a place where they could yell at each other and not be heard. Equihua blamed Daughter for the problems he was having with Daughter's mother. Equihua told Daughter he was going to do things to her that he had not been able to do with her mother, and that he was going to get "revenge."
Daughter protested, saying "I'm your daughter," and began to walk away. When Equihua restrained her, she attempted to defend herself with a pen she pulled out of her pocket. Equihua broke the pen and forced Daughter to the ground, threatening to hit her if she called for help. Daughter continued to yell, prompting Equihua to cover her mouth and nose with his hand so she could not breathe. When Equihua removed his hand, she began yelling again. Equihua put a piece of blanket in her mouth, pulled down her pants, and forcibly had sexual intercourse with her.
Equihua told Daughter not to tell anyone about the incident, and threatened: "If you tell anyone I don't know what I'll be capable of doing. I will go to Mexico." Because Daughter's mother and siblings lived in Mexico, she was afraid this meant Equihua would harm her family if she reported the incident. Equihua drove Daughter home and again told her not to tell anyone. Deputies arrested Equihua at work the next day.
On April 12, 2005, Equihua pleaded guilty to one count of forcible rape. On June 17, 2005, the trial court denied probation and sentenced Equihua to six years in prison. As an element of the sentence, and not as a probation condition, the trial court ordered Equihua to have no contact with Daughter. It appears the trial court considered the inclusion of the no-contact order to be a mandatory element of the prison sentence.
The complaint charged four counts: counts 1 and 2, forcible rape under section 261, subdivision (a)(2); count 3, making a criminal threat under section 422; and count 4, giving false information to a police officer under section 148.9, subd. (a). In exchange for Equihua's guilty plea to count 1, counts 2 through 4 were dismissed, and the middle term of six years was imposed.
DISCUSSION
I
Preservation of Issues on Appeal
Equihua argues the no-contact order was unauthorized, in excess of the trial court's jurisdiction, and in violation of his constitutional right to due process, to fundamental fairness in sentencing, his state-created liberty interest in the correct application of state law, and his state and federal liberty and association interests. The People contend Equihua waived his right to appeal the no-contact order because he did not object to the order at sentencing.
In general, only claims properly raised in the trial court by the parties are reviewable on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Smith (2001) 24 Cal.4th 849, 852.) There are some narrow exceptions to this rule. When an appeal challenges unauthorized sentences or sentences entered in excess of jurisdiction, we may review the sentence regardless of whether an objection was made in the trial court because the claim presents a question of law that does not require consideration of any factual issues in the record. (Smith, at p. 852.) The People, relying on People v. Stowell (2003) 31 Cal.4th 1107, argue the no-contact order was not an unauthorized sentence because it was a nonpunitive order accompanying a sentence.
In Stowell, the defendant (Stowell) appealed the trial court's order requiring him to undergo an HIV test pursuant to section 1202.1, subdivision (e)(6) as an unauthorized sentence. (People v. Stowell, supra, 31 Cal.4th at pp. 1111-1112.) Stowell claimed the trial court committed error because it did not make a finding of probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV had been transferred from the defendant to the victim under the section 1202.1, subdivision (e)(6)(A). (Stowell, at pp. 1111-1112.) In affirming the lower courts' holdings, the Court reasoned that the general waiver rule (and not the analytical template of Smith and Scott) applied because an HIV test is mandated by statute and thus is not a sentencing choice, and Stowell's objection could have been easily addressed to and resolved by the trial court. (Id. at p. 1113.)
Equihua's claim differs from Stowell's claim. Stowell was appealing the procedural defects in the way the order was made under the statute. Here, Equihua claims there was no authority under any statute to justify the imposition of the no-contact order. Additionally, Equihua's claims raise constitutional issues. We may review a claim of constitutional error for the first time on appeal because an appeal raising constitutional issues does not require us to scrutinize individual facts and circumstances in the record but to review abstract and legal concepts. (In re Sheena K. (2007) 40 Cal.4th 875, 885.) Therefore, his challenge to the no-contact order presents a question of law, which we may resolve without reference to the record under a de novo standard. (People v. Smith, supra, 24 Cal.4th at p. 852; see also State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67.)
II
The Authority of the Trial Court to Issue the No-Contact Order
Equihua contends the no-contact order was in excess of the trial court's jurisdiction and was unauthorized. He argues there was no statutory basis for the order, and it was not within the inherent power of the trial court to issue the order.
A. Statutory Authority
Several Penal Code sections mandate or allow no-contact orders at the time of sentencing in certain circumstances. For example, section 1202.05, subdivision (a) requires the court to prohibit all visitation between a defendant convicted of a violation of section 261 and the minor victim. A trial court may issue a no-contact order valid for up to 10 years in stalking cases. (§ 646.9, subd. (k).) A trial court may also impose a no-contact order as a condition of probation. (§ 1203.1, subd. (j).) Furthermore, on the request of the victim the parole authority must impose a form of no-contact order as a condition of parole (§ 3053.2, subd. (a)).
These statutory provisions mandating or authorizing a no-contact order do not apply in this case. Daughter was 19 years old the day after the incident and not a minor victim. There were no stalking-related charges. The no-contact order was not a probation condition because the court denied probation. We have found no Penal Code section either requiring or allowing a no-contact order at the discretion of the trial court as an element of the prison sentence in a forcible rape case in which the victim was not a minor.
The only Penal Code section that could reasonably justify the no-contact order is section 136.2, which allows a court broad authority to issue no-contact orders in criminal cases "upon a good cause belief that harm to . . . a victim . . . has occurred." (§ 136.2, subd. (a)(4).) However, to do so the issuing court must have jurisdiction over the pending matter. (§ 136.2, subd. (a).)
Based on the statutory jurisdiction requirement, People v. Stone (2004) 123 Cal.App.4th 153 (Stone) held that section 136.2's application is limited to the pendency of a criminal proceeding because section 136.2 "is aimed at protecting only [victim[s] or witness[es].' " (Stone, at p. 159.) Section 136.2's purpose of protecting victims and witnesses is "an indication of [section 136.2's] limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them." (Stone, at p. 159.) The good cause requirement in section 136.2 requires a threat, or likely threat, in connection with the criminal proceedings or participation in them. (Stone, at p. 160.)
Equihua threatened Daughter that he would go to Mexico, which Daughter interpreted as a threat of harm to her family. However, Daughter never had the opportunity to testify because Equihua pleaded guilty to forcible rape, and the record does not show Equihua made any other threats to dissuade Daughter from proceeding with the prosecution or testifying against him. The fact of a prior assault against the victim without intent to interfere with the proceedings is insufficient to justify a no-contact order under section 136.2. (Stone, supra, 123 Cal.App.4th at p. 160.) Because Equihua did not attempt to interfere with the proceedings, section 136.2 does not authorize the no-contact order.
The People assert that the Legislature and courts have interpreted section 136.2 to protect victims and witnesses after the criminal proceeding has terminated, but this argument is unpersuasive. The People do not cite any authority supporting their assertion. Moreover, even if Equihua's threat was an attempt to interfere with the proceedings, orders made under section 136.2 are limited in time to the pendency of the criminal proceeding. (Stone, supra, 123 Cal.App.4th at p. 159.) The Judicial Council of California recognized Stone's holding when it adopted form CR-161 for criminal protective orders. Under the "Warnings and Notices" section, CR-161 states section 136.2 orders are not valid after imposition of a state prison commitment. (Judicial Council Form CR-161, p. 2.) The trial court was not authorized to impose the no-contact order under section 136.2 as a condition of Equihua's prison sentence.
B. Inherent Power of the Court
The trial court has the inherent power to protect the administration of justice from " 'abuses, oppression and injustice.' " (Wheeler v. U.S. (1981) 640 F.2d 1116, 1123.) This power "must be exercised 'with circumspection . . . (and) only when . . . defendant's conduct presents . . . significant interference with the (administration of justice).' " (Id. at p. 1124, citing Bitter v. U.S. (1967) 389 U.S. 15.) The Wheeler court emphasized that posttrial orders to protect witnesses and jurors "are extraordinary in character and to be issued only in rare instances." (Wheeler, at p. 1124, fn. 15.) The People maintain the trial court was within the bounds of its inherent power when it issued the no-contact order in this case, relying on U.S. v. Morris (2001) 259 F.3d 894.
In Morris, the Seventh Circuit Court of Appeals upheld a no-contact order because of the rare circumstances of the case. (U.S. v. Morris, supra, 259 F.3d at p. 901.) The defendant (Morris) had pleaded guilty to two counts of traveling in interstate commerce with the intent to engage in a sexual act with a juvenile. (Id. at p. 896.) On appeal, Morris sought to withdraw his guilty plea and requested the court reverse the no-contact order imposed by the trial court. (Ibid.) The victim was a child, and the defendant, Morris, continued to contact her after his imprisonment by relaying messages through his friends, telephoning her, and writing a letter to her. (Id. at p. 901.)
The facts of Morris are distinguishable. As a preliminary matter, Morris involved a child victim. Moreover, Morris sought to withdraw his guilty plea, thereby creating the possibility of a trial with the victim as a key witness. Because Morris had continued to contact his victim both directly and indirectly during the proceedings, the court was concerned about dissuasion of the victim from testifying in future proceedings and the protection of the victim and her family from further harassment. (U.S. v. Morris, supra, 259 F.3d at p. 901.) Accordingly, the court affirmed the no-contact order as a protective measure of the judicial process.
In contrast, Equihua has not sought to withdraw his guilty plea, and there is no evidence he contacted, threatened, or harassed Daughter or her family during the pendency of the proceedings. The People assert Equihua's threat of "go[ing] to Mexico," coupled with his violation of a position of trust, make it reasonable to believe he would attempt to contact Daughter in the future. This argument is speculative. We agree with Equihua that the potential for future threats does not justify the trial court's imposition of a no-contact order, especially where, as here, no harassment or harmful contact took place during the proceedings.
Additionally, Daughter did not request protection from the court. Although she told the probation officer she would fax a letter detailing how the incident had affected her, she did not do so. We recognize Daughter had difficulty speaking with the police and probation department about the incident, but there were no continued threats by Equihua during the proceeding that would justify the no-contact order. If Equihua contacts or attempts to contact Daughter, she has a remedy: under Code of Civil Procedure section 527.6, subdivision (a), the trial court may issue orders to protect against any threats or harassment after notice and hearing. Furthermore, Daughter can request a no-contact order be included as a condition of parole. (Pen. Code, § 3053.2, subd. (a).)
Because Equihua did not interfere or attempt to interfere with the administration of justice during the pendency of the proceedings, the trial court did not have the inherent authority to issue the no-contact order.
III
Equihua's Constitutional Claims
Equihua argues the no-contact order denied him fundamental fairness in sentencing, and violated his state-created liberty interest in the correct application of state law, his state and federal liberty and association interest, and his right to due process of law. Because we hold the trial court did not have the statutory or inherent authority to impose the no-contact order, we need not address Equihua's constitutional claims.
DISPOSITION
The no-contact order is stricken and the judgment is otherwise affirmed.
WE CONCUR:
HALLER, Acting P. J., McINTYRE, J.